Other Useful NetLinks Handbook Contents Introduction Risk management Insurance program Legal system Medical records Incident reporting Physician-patient Informed consent Infectious disease Confidentiality Patient's rights Risk Home Page

Overview of the Legal System In the current health care environment, an increasing number of patients who believe they have sustained physical or psychological harm (a "bodily injury") as a result of the hospital's or a health care provider's negligence bring claims or lawsuits to recover damages. A number of factors are felt to contribute to patients' decision to sue, such as the experiencing of an unexpected or less than perfect result, or a feeling that they have been treated in an uncaring, rude, unsympathetic and/or less than professional manner. Many believe the most important factor that causes a patient to resort to litigation is a breakdown in the patient-physician relationship. Although some patients have legitimate reasons to bring a claim or lawsuit, much of the increase in litigation is attributable to our living in a society which commonly uses litigation to address any perceived injustice. Generally, hospitals and health care providers need to be concerned about two types of negligence claims, professional liability (commonly referred to as "medical malpractice") and general liability. Professional liability, or medical malpractice claims, generally concern allegations of negligence regarding the rendering of professional services which result in bodily injury to the patient. Negligence, in the professional liability setting, is defined as a departure, either by the acts or omissions of a health care provider, from the accepted standards of care. General liability, or general "negligence" claims, usually concern allegations of negligence regarding the maintenance of the hospital's or a health care provider's buildings and/or property resulting in bodily injury or property damage to a visitor, or less commonly, to a patient. Negligence, in the general liability setting, is defined as the failure to exercise a reasonable degree of care which the law requires to protect others from a foreseeable or unreasonable risk of harm. In a physician's office or the common areas of the hospital (rather than a specific patient room), a number of factors may give rise to a claim for general liability. Most often, general liability claims involve "slips and falls". However, a number of other occurrences can give rise to these types of claims. The Civil Court System Medical malpractice and negligence lawsuits are brought in the civil court system, usually under state, but occasionally under federal law. This body of law, the statutory part of which is periodically amended by legislative bodies and all of which is subject to interpretation by the courts, is ever subject to change, expansion and reinterpretation. In these lawsuits, the person bringing the claim (the plaintiff) must establish the following four elements: A legal duty was owed to the plaintiff. The standard required to meet that duty was breached. A causal relationship existed between that breach and the injury claimed. Damages were sustained by the plaintiff directly as a result of that breach and the injury caused by it. A legal duty is established when a hospital or health care provider undertakes the care and treatment of a patient, whether it be to treat only a certain ailment or injury, at a certain place and for a specified time, or for ongoing care and treatment. The breach of the standard must be established by expert testimony. The relevant standard is the one in effect at the time of the incident, not when the claim is made. Causation is the connection between the failure to meet a duty owed and the event (the injury) which occurred. This is often times referred to as "proximate cause." The damages are the injuries and as a practical matter are defined as the estimated monetary equivalent to compensate the injured person for the loss or injury sustained. In order to become familiar with issues and chronological events of a medical malpractice or negligence lawsuit, the following specific areas will be discussed: The Statute of Limitation The Summons and Complaint The Discovery Process Depositions and Interrogatories The Statute of Limitation The statute of limitation defines the time within which a plaintiff must commence a lawsuit by complying with certain prescribed procedures. The statutes of limitation for civil actions, which differ depending upon the type of action, are usually state laws. These time periods allow a plaintiff or his or her authorized representative a reasonable time to discover and investigate whether he or she was injured as a result of a defendant's negligence. In Connecticut, personal injury lawsuits, which include medical malpractice and non-medical malpractice actions (general liability), must be commenced by the patient (the plaintiff) against the hospital or a health care provider (the defendant) within two (2) years from either the date or discovery of the act or omission from which the injury is alleged to have been caused, but in no event more than three (3) years from the date of the act or omission complained of. In Connecticut, there is no extension of this statute even if the injury occurred to a minor. Due to a recent statute change, a plaintiff may get an automatic three month extension to the two year statute if application is made to the court prior to the two year period; therefore, some suits may be brought two years and three months after the incident. The Summons and Complaint While a letter of representation from an attorney may be the initial indication of a claim or potential lawsuit, it is the filing and service of specific legal pleadings known as the Summons and Complaint, which initiate the formal litigation process. A Summons, which notes the plaintiff(s), defendant(s) and jurisdiction of the lawsuit, generally gives little indication of the specific allegations which form the basis of the lawsuit. The Complaint describes, with more or less specificity, the dates and allegations of negligence against each defendant, and the injury and damages allegedly sustained by the plaintiff. These materials must be served on the defendant(s) and filed in court. Service may be in person, in which case the Summons and Complaint should immediately be sent to the Legal Office; service may also be accepted in the Legal Office, if coverage is confirmed and the defendant has not moved out of the area. The Complaint allegations will be answered later in the litigation. The Discovery Process This second aspect of the litigation process involves the investigative phase of the lawsuit. Both the plaintiff(s) and defendant(s) seek to discover information by obtaining witness testimony, medical records, expert opinions, documents, etc. The period of time for discovery varies depending upon the complexity of the case and the number of parties involved but, in general, it will encompass a minimum of 2 years, and can extend for as long as 5-7 years.